Sometimes marriages do not work out as planned. When this happens, couples separate and later divorce. The purpose of this blog is to explain the law of separation by answering frequently asked questions on those matters.
Each case that Cape Fear Investigative Services handles is treated on an individual basis and the methods of investigations vary. When calling for an appointment you will be assigned to an investigator that will work your case in a ethical and professional manner while abiding by all state and local laws. The investigator will consult with you for the first hour at no charge to learn the facts about your case and then determine the best actions and cost. Call 910-762-4374 to speak with an investigator.
Do I file for separation?
No. Separation happens once husband and wife begin living separate and apart and at least one of them has the intent to remain separate and apart.
Do I need an agreement or court order to be legally separated?
No. You are legally separated once you begin living separate and apart and at least one spouse intends to remain that way.
Is it okay if we continue living in the same house?
No. Living separate and apart means you must be living in separate residences.
What are the grounds for divorce?
There are only two grounds for divorce: 1) Separation for one year; and 2) Incurable insanity of one spouse and separation for three years. The vast majority of marriages are dissolved based on the ground of separation for one year. In order to get divorced, you must have been separated for one year with the intent to remain separate and apart and one of you must have been a resident of North Carolina for at least six months. Fault is irrelevant to the divorce process.
What do I need to do to get divorced?
You have to file a complaint (lawsuit) asking for a divorce. You have to serve your spouse with the complaint. Cape Fear Investigative Services will serve the complaint either by your request or that of your attorney. Then you will need a hearing in front of a judge. The judge has to enter a judgment declaring you divorced. You are not divorced until the judge signs a judgment and the clerk file stamps it.
Does it matter who files for the divorce?
No. The person who files for the divorce is responsible for filing the appropriate papers and getting the hearing scheduled. However, there is no advantage to filing first.
How long does the divorce process take?
The length of the process varies based on how long it takes to get service of your spouse and how soon the clerk schedules the divorce hearing. Generally it should take less than 60 days.
What is the effect of a divorce?
There are many important effects of a divorce. First, the entry of a divorce cuts off your right to alimony and property division. If those claims have not been resolved in a valid and binding agreement or property filed with the court prior to the entry of the divorce judgment, they are lost forever. The loss of those claims can be devastating. If you have a claim for alimony or if you or your spouse acquired property during the marriage (house, cars, bank accounts, retirement), you need to consult an attorney to protect these claims. Cape Fear Investigative Services offers financial investigations to uncover any hidden assets or properties that may have been purchased without you being aware of any transactions at all. Second, the entry of a divorce changes your tax filing status. Third, the entry of a divorce enables you to remarry. Fourth, the entry of a divorce cuts off your rights to inherit from your spouse. Fifth, it can alter the way your house is owned if you own a house with your spouse.
How do I change my name back?
You may include a request to change your name in the divorce complaint. The name change can be included in the divorce judgment. You cannot change your name to any name in this process. You may resume your maiden name. You may also resume a former married name in certain circumstances.
What about custody, child support, alimony, and property division?
These issues are complicated and beyond the scope of this blog. You may resolve these issues by agreement with your spouse, in which case you would execute a Separation Agreement. In order to be valid and binding, a separation agreement needs to follow certain formalities. You should consult an attorney for assistance in negotiating and drafting the agreement. If you and your spouse are not able to agree, you can try mediation or arbitration as alternatives to court. If those options do not work for you, you will have to file a complaint (lawsuit) seeking relief in court. Regardless of which approach you choose, you should consult an attorney first.
What is Mediation?
Mediation is when a third party helps facilitate an agreement between the parties. The mediator does not make decisions. The parties make the decisions, but the mediator helps them along. You can do private mediation before or after a complaint has been filed. You can address custody, child support, alimony, and property issues in mediation. Mediation is generally less expensive and not as time-consuming as court. The parties control the outcome. The entire process can be settled in one day, and you can leave a private mediation with a binding settlement document. The process is very civil and dignified. It can set the tone for how the parties deal with each other from that point forward. If the parties are able to resolve the issues incident to their separation at mediation, typically they work together and treat each other better in subsequent dealings with children or otherwise. You do not necessarily need a lawyer for mediation, but we recommend it. A non-lawyer mediator will not know the law. Without an attorney you could lose or waive rights you did not know you had.
How do I find an attorney?
You may contact Cape Fear Investigative Services, Inc. at 910-762-4374. If you cannot afford an attorney, you should contact the Legal Aid of North Carolina office serving your county.
Information was provided by the North Carolina Bar Association. Cape Fear Investigative Services, Inc offers investigative service in North Carolina and South Carolina.
Tags: divorce, seperation